Collier, Gilmour and McKerracher JJ
In this matter, the Full Federal Court affirmed the decision of a primary Judge to dismiss an application to review a decision of a Registrar of the Court. The decision in question was the refusal to file an originating application.
History of the application
The appellant (Mr Johnson) is an elder of the Wulgurukaba people, who as noted at [2] has a deep and abiding sense of connection with Magnetic Island, located approximately 9 kilometres from the coast of north Queensland. At an earlier unspecified time, the Wulgurukaba people filed two applications for determination of native title on Magnetic Island. In 2004, the Wulgurukaba people also entered negotiations as to the terms of an ILUA with the State of Queensland. In 2013, Mr Johnson filed an application seeking an order under s 199C of the Native Title Act 1993 (Cth) directing the Native Title Registrar to remove the details of the ILUA from the Register on the basis that both Mr Johnson and the Wulgurukaba people entered the ILUA under duress.
Grounds of Appeal
Mr Johnson appealed the primary judgment on the following grounds:
the primary judge took an irrelevant consideration into account in the exercise of a power (that the respondents would appeal if his Honour decided otherwise) and
there was no evidence or other material to justify the making of the decision (his Honour expressed the view that World War II had altered Native Title on Magnetic Island).
Decision
The Full Federal Court dismissed the appeal.
Ground 1 The appellant had informed the Court that he was not pursuing ground 1.
Ground 2 Their Honours explained at [16] that they did not accept the submission of the appellant ‘that the primary judge had based his decision on matters relating to the existence or otherwise of native title.’ The Court observed at [17] that
… his Honour did not, during the course of the hearing, purport to express any conclusions concerning the existence of native title in Magnetic Island, and more importantly that his Honour simply noted during the course of an exchange with Mr Paterson that the prospect of extinguishment of native title because of military use of land was “theoretical” in light of the then-pending decision of the High Court in Congoo. None of this material in any way gives credence to ground 2 of the notice of appeal before us. No error on the part of the primary Judge has been established. Ground 2 fails.
Their Honours found that Mr Johnson had failed to raise either fraud or undue influence as a ground before the primary Judge. Therefore, it was not open to Mr Johnson to now seek to resurrect those claims.
The Court noted at [20] that:
An Anshun estoppel arises where the matter relied upon in the subsequent proceeding could and should have been raised in the first proceeding on the basis that it was so relevant to the subject matter of the first action that it would have been unreasonable not to have relied on it: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602-3 per Gibbs CJ, Mason and Aickin JJ. This doctrine is founded upon a matter of public policy that a party should not be troubled twice in the same matter: Murphy v Abi-Saab (1995) 37 NSWLR 280 at 286 per Gleeson CJ. The primary Judge, in effect, so concluded.